The "Bong Hits 4 Jesus" Student Speech Case: With Kenneth Starr Seeking High Court Review Of The Ninth Circuit Decision, Is Someone Blowing Smoke?

Findlaw columnist Julie Hilden writes:

Last Monday, September 11, former Independent Counsel Kenneth Starr - now a lawyer at Kirkland & Ellis -- asked the Supreme Court to review a March 10 decision by the U.S. Court of Appeals for the Ninth Circuit, in the case of Frederick v. Morse. The decision upheld a public high school student's First Amendment right to display a banner off campus. Starr represents the school district on a pro bono basis.

In a two-part series of columns, I'll explain why I believe the Ninth Circuit was right to rule as it did. I'll also put the decision in the context of two other controversial decisions the Ninth Circuit has issued this year regarding public school students' speech.

The Facts of the Frederick Case

The Frederick case grew out of an incident in which Juneau, Alaska high school senior Joseph Frederick unfurled a banner reading "Bong Hits 4 Jesus" on a public sidewalk. He did so during a privately-sponsored rally where townspeople watched the Olympic torch pass by. Students were released from school to attend the rally. The high school's "pep band" and cheerleaders performed there, but the court found that teacher supervision of other students at the rally was "minimal or nonexistent."

Frederick and his friends made sure they unfurled their banner when TV cameras were passing by - but the school's Principal, Deborah Morse, who was also attending the rally, went up to Frederick, grabbed the banner, crumpled it up, and suspended him for ten days.

Frederick later sued, invoking the federal civil rights statute that allows plaintiffs to seek money damages for government infringements of their constitutional rights, including First Amendment rights.

In my view, the principal's conduct was appalling. She didn't just tell Frederick to put his sign away, or that it was inappropriate, nor did she warn him that he could be suspended. Rather, she actually went right up to him on a public street and destroyed his banner.

This is the kind of thing that we believe cannot happen in this country. Is it suddenly acceptable simply because the victim is eighteen? What happened to school officials' duty to try to convince students - first, by setting the right example -- to solve their differences with reason, not violence? Ironically, if Frederick had ripped up another student's poster on school grounds, he surely would have been suspended for doing so.

In short, the example this principal is setting is a very ugly one. No wonder the Ninth Circuit held - on the separate question of the principal's claim to immunity under the federal civil rights statute - that "it would be clear to a reasonable [principal] that [her] conduct was unlawful in the situation [she] confronted." (As a result, the principal herself may face liability for damages; she is a co-defendant in the case, along with the school board.)

How could this kind of behavior strike Starr, or Kirkland & Ellis, as so worthy of protecting, that it was worth taking this case on for the school district as a pro bono project?

The Legal Standards for Public School Students' Speech

There are three Supreme Court cases setting forth standards for public school students' speech -- which were considered by the Ninth Circuit - but only one is relevant here.

One of the cases, Hazelwood School Dist. v. Kuhlmeier - addressing school-sponsored speech -- doesn't apply because neither Frederick's banner (nor the rally itself) was school-sponsored in the sense that, for instance, a school-funded student newspaper is.

A second case, Bethel School Dist. No. 3 v. Fraser - which was relied on by the district court, but distinguished by the Ninth Circuit -- doesn't apply because it addresses only vulgar, lewd, obscene, and otherwise "plainly offensive" speech, and because the Ninth Circuit has interpreted that to mean, in essence, obscenity or, at least, speech involving four-letter words or similarly profane language.

Finally, there is Tinker v. Des Moines Independent Community School Dist.. Its rule is simple: Student speech -- other than speech that falls under the precedents noted above - can only be punished or otherwise regulated if it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Moreover, to support the punishment or regulation, school districts must cite "evidence that [the punishment] is necessary to avoid material or substantial interference with schoolwork or discipline."

Applying the Legal Standard in the Frederick Case

The Juneau School District had an exceptionally weak case under Tinker.

In support of its case that Frederick's banner was disruptive, the District claimed that the banner would be read by many at the rally as "advocating or condoning illegal drug use."

Similarly, School Superintendent Peggy Cowan recently told CNN that this case is appropriate for Supreme Court review because it raises "an important question about how the First Amendment applies to pro-drug messages in an educational setting."

But even if this was, to some extent, a pro-drug message, that wasn't all it was. The district itself acknowledged that Frederick could have been not just responding to, but parodying the school's anti-drug message (and parody is strongly protected by the First Amendment). Moreover the "for Jesus" part shouldn't be left out of the analysis; juxtaposing "Bong Hits," the informal "4" for "for," and "Jesus" may also send a message that religion shouldn't be taken so seriously, and a message that Jesus was more laid-back, and would have been more sympathetic to the counterculture, than some authoritarians would admit.

I'm not, of course, claiming that this message was well-thought out. To the contrary, it reads like a spur-of-the-moment lark, a prank. But I do think that it meant something different and more complicated, than just, say, a "Smoke Pot" banner would have. (Frederick himself said the banner was intended to be meaningless and funny, and he just wanted to get it on television. However, as many First Amendment cases have shown, words often have an impact beyond their intended meaning.)

The District also claimed that if the principal had done nothing, the district would have been seen by many as giving its imprimatur to Frederick's pro-drug message. But that claim seems ridiculous: If the District was as avid about spreading its anti-drug message as it claims that it was, no one would believe that it had suddenly changed its policy by merely deciding not to rip up Frederick's poster. If anything, onlookers might believe the District tolerated Frederick's poster out of a healthy respect for the First Amendment, or that the school district simply wasn't worried about its own message being undermined by a poorly-thought-out sophomoric sign.

Why the Ninth Circuit Is Right, and Starr Is Wrong, In This Case

Because this case is such a clear First Amendment violation, and because the Ninth Circuit rightly sided with the student, there's no good reason here for Supreme Court review.

In explaining why review was sought, Eric Hagen, an attorney from Starr's office who also worked on the Supreme Court petition, told a reporter, "It makes it a little harder when teachers and principals in their daily duties might be subject to a damages lawsuit and be held personally liable." But it's only harder for teachers and principals to perform their daily duties when the lines for liability are unclear.

As noted above, there are few First Amendment violations clearer than a government employee's crumpling up someone's banner at a privately-sponsored rally on a public street. That's censorship with a capital "C." If the Supreme Court does want to make the line between permissible disciplinary action and impermissible First Amendment violation clearer, perhaps it should wait for a subtler, closer case.

Ironically, I think most schoolchildren, if taught a bit about the First Amendment, could easily identify this as an obvious violation. Their teachers and principals ought at least to be able to do the same.